Currie v. Bangor & A. R. Co.

• Decision Date: 13 August 1909
• Citation: 75 A. 51,105 Me. 529
• Parties: CURRIE v. BANGOR & A. R. CO.
• Court: Maine Supreme Court

75 A. 51

105 Me. 529

CURRIE

v. BANGOR & A. R. CO.

Supreme Judicial Court of Maine.

Aug. 13, 1909.

(Official.)

Report from Supreme Judicial Court, Aroostook County.

Action by Jonathan Currie against the Bangor & Aroostook Railroad Company. Case reported. Judgment for defendant.

Argued before WHITEHOUSE, SAVAGE, SPEAR, CORNISH, KING, and BIRD, JJ.

Ransford W. Shaw, for plaintiff. Don A. H. Powers, James Archibald, Bernard Archibald, Louis C. Stearns, Louis C. Stearns, Jr., F. H. Appleton, and Hugh R. Chaplin, for defendant.

WHITEHOUSE, J. In this action the plaintiff seeks to recover damages alleged to have been sustained by him on account of the obstruction by the defendant of a right of way three rods in width which the plaintiff claims to own leading from his land across the defendant's railroad tracks and location to the highway running to the village of Mars Hill.

The defendant admits that, in pursuance of the requirements of section 26 of chapter 52 of the Revised Statutes and the decision of this court in Wilder v. Maine Central R. R. Co., 65 Me. 332, 20 Am. Rep. 608, the company did erect and endeavor to maintain legal and sufficient fences on each side of its location at the point in question, and thereby necessarily closed and obstructed the way which the plaintiff claimed to own; but the defendant denies that the plaintiff had any right of way across the locus in question prior to or at the time of the taking of the land by the defendant under eminent domain for the location of its railroad. The original location of the railroad in 1892 was changed in 1894. Among the variations then made was the location over the three-rod strip now claimed by the plaintiff as a right of way. This modified location was approved by the railroad commissioners October 2, 1904, and it is conceded that prior to that date no right of way across the land in question had ever been created by any deed or conveyance or other written instrument. It is contended that the plaintiff, in common with such of the public generally as had occasion to use it, had traveled across it uninterruptedly for more than 20 years, and thereby acquired a prescriptive right to do so before the location of the railroad over it in 1804. At the time of the location of the defendant's railroad and for some years prior thereto, Frank H. Lavine owned the land covered by it at the point in question. There was a gravel pit on his land at or near the river from which Lavine had been accustomed to sell gravel and sand for many years prior to the location, and it appears from the evidence that the purchasers of the sand during those years had driven their own teams over Lavine's land to and from the gravel pit until a well-defined farm road appeared where the plaintiff now claims a right of way. In times of drought and as occasion might require, the neighbors were also allowed to drive their horses and cattle over this road to the water at the river. After the year 1900 the plaintiff had driven over this road to his starch factory and mill, and continued to cross at that point after the location and operation of the railroad. The principal witness for the plaintiff upon this branch of the case thus testifies: "in the first place it was simply a path. Mr. Lavine, the old gentleman, drove his cattle there in the winter season. We all had access to that to water our horses. And then he had a sand pit down there, and later he sold sand. I have been there many a day with a team in company with other men to the sand pit, and it has been a road for years long before the railroad."

This is substantially all of the evidence in the case upon which the plaintiff's claim of a right of way by prescription is founded, and it is manifestly insufficient to establish the proposition. Search is made in vain for any evidence having a necessary tendency to show that this way had been traveled by the public generally adversely to the rights of the owners of the land for a period of 20 years. On the contrary it satisfactorily appears from all the evidence that the use of the road by Lavine's neighbors and customers was purely permissive, and it is obvious that no term of permissive enjoyment of such a privilege, however long continued can be adequate to create a prescriptive right. "If the use of the road has been permissive and by the indulgence and license of the owner of the land over which it passes then such use does not constitute that adverse use Which the law requires." Mayberry v. Standish, 56 Me. 342.

In confirmation of this view is the significant conduct of Lavine himself. June 13, 1895, he conveyed to Houghton and Richards a portion of his farm, including a right of way three rods wide extending to the county road, the location of which was identical with the right of way claimed by the plaintiff. It is a justifiable inference that at that time more than eight months after the final location of the railroad approved by the railroad commissioners October 2, 1894, Lavine did not understand that the public had a right of way there acquired by prescription; otherwise, he would not be expected to make a conveyance of it to Houghton and Richards in disregard of such prescriptive right in the public.

But, even if it be assumed that the plaintiff had a right of way by prescription as claimed by him, it would seem from well-established principles of law that such an easement was extinguished when the defendant took the land covered by its location as for public uses. See Rev. St. c. 51, § 24, and chapter 1, § 6, par. x; Googins v. Boston & Albany R. R. Co., 155 Mass. 505, 30 N. E. 71; 1 Lewis on Em. Domain, § 202a, note 3.

But the plaintiff contends that he not only had a right of way by prescription, but that he acquired one by deed. He claims that he succeeded by intermediate conveyances to the right of way three rods in width conveyed by Lavine to Houghton and Richards by his deed of June 13, 1805, above mentioned. But, as already observed, it appears that the final location of the defendant's railroad with a variation covering the land in question was approved by the railroad commissioners October 2, 1894, more than eight months before the execution of this deed by Lavine, and that long before that time the defendant had...